Before the Environmental Review Tribunal April 2009 1 The Tribunal - - PowerPoint PPT Presentation
An Overview of the Hearing Process Before the Environmental Review Tribunal April 2009 1 The Tribunal and its Members Established by legislation Arms length, independent and impartial Members appointed by Cabinet Members have
Established by legislation Arm’s length, independent and
Members appointed by Cabinet Members have diverse backgrounds
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Efficiently and effectively resolve
Mediation Public hearings Decisions/recommendations
Provide excellent customer service
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Clean Water Act, 2006 Consolidated Hearings Act Environmental Assessment Act Environmental Bill of Rights, 1993 Environmental Protection Act Greenbelt Act, 2005 Niagara Escarpment Planning and Development Act Nutrient Management Act, 2002 Oak Ridges Moraine Conservation Act, 2001 Ontario Water Resources Act Pesticides Act Safe Drinking Water Act, 2002
Clean Water Act, 2006; Environmental Protection Act; Ontario
Water Resources Act; Nutrient Management Act, 2002; Pesticides Act; Safe Drinking Water Act, 2002
Director’s Order* Director’s refusal to issue, or cancellation or suspension
Terms and conditions of an approval Right to appeal within 15 days* Further right of appeal to Divisional Court and/or to
Act’s purpose is broad Standing (s. 38 (1))
A person seeking Leave to Appeal a decision regarding a Class I or II instrument must be an Ontario resident and have an “interest” in the decision
Two-part test for Leave to Appeal (s. 41)
Leave to appeal a decision shall not be granted unless it appears to the appellate body that,
regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and
in significant harm to the environment.
Hearing usually conducted by written submissions No right of appeal
The Environmental Assessment Act
Protection, conservation and wise management of the environment Undertakings Terms of Reference for an Environmental Assessment (EA) Government and Public Review of EA. Public may request that the Minister refer a matter to the Tribunal for a Hearing Minister can approve the EA or require a Hearing Terms of Reference for a Hearing
The Environmental Protection Act
Protect and conserve the natural environment Approvals for waste disposal sites and waste management systems Discretionary/ mandatory Hearings Relevant considerations Appeal to Cabinet and Divisional Court
The Ontario Water Resources Act
Conserve, protect and manage Ontario’s waters Prevent impairment of any water body Sewage works Discretionary/mandatory Hearings Appeal to Cabinet and Divisional Court
The Consolidated Hearings Act
A Joint Board conducts all hearings (ERT and OMB members) Proponent requests consolidation Broad powers Establishment of a Joint Board Right to appeal to Cabinet
The Greenbelt Act, 2005 (“GA”)
Greenbelt Plan amendments, OMB and Joint Board appeals stayed under the GA, municipal official plan and zoning by-law amendments referred by the Minister to conform with the Greenbelt Plan After hearing – provide a summary of the evidence and recommendations to the Minister of Municipal Affairs and Housing No statutory right of appeal
The Oak Ridges Moraine Conservation Act, 2001 (“ORMCA”)
Oak Ridges Moraine Conservation Plan amendments, OMB appeals stayed under the ORMCA, municipal official plan and zoning by-law amendments referred by the Minister to conform with the Oak Ridges Moraine Conservation Plan After hearing – provide a summary of the evidence and recommendations to the Minister of Municipal Affairs and Housing No statutory right of appeal
Appeal of a decision of the Niagara Escarpment
Commission regarding development permits
Hearing Officer Recommendations and reports given to the Minister of
Natural Resources
Must consider Act’s objectives Hearing Officer Recommendations provided to the Niagara Escarpment
Commission
Commission recommends to the Minister of Natural
Resources
Lieutenant Governor in Council considers the Minister’s
recommendations
Voluntary Conducted after the Preliminary Hearing Members are trained and experienced Confidential and without prejudice Governed by Rules of Practice and Practice Directions Not applicable to NEPDA, ORMCA and GA
Governed by the procedures provided by:
the enabling legislation the Statutory Powers Procedure Act (where applicable) the Tribunal’s Rules of Practice and Practice Directions the Tribunal member conducting the hearing
Usual steps in the hearing process
Tribunal provides Notice of Hearing Preliminary Hearing/ Pre-Hearing Conference The Hearing
Identify/Designate persons who wish to participate
Parties Participants Presenters
Determine and simplify issues Determine whether any agreed facts Identify the witnesses Set deadlines for exchange of information Schedule dates, set location for the hearing Develop Procedural Directions, if appropriate Hear preliminary motions
As Presenter
May be a witness and present evidence at a pre-arranged time Be questioned by the Tribunal and the Parties Upon request, receive a copy of documents exchanged by the Parties Cannot call or cross-examine witnesses, make submissions, seek review, ask for or be subject to costs
As Participant
In addition to the above, make oral and written submissions to the Tribunal
As Party
All of above plus, call or cross-examine witnesses Seek costs (if legislation or Rules permit) Seek review of the Tribunal’s Decision, where available
Rules of Practice and Practice Directions for Technical/Opinion
Evidence
fair and full disclosure plain language
A witness statement should indicate:
the witness’ interest in the application whether the evidence is factual or opinion a complete statement of the evidence
Rules regarding summons to witness do NOT apply to proceedings
under the ORMCA and GA
Exchange of Documents
Relevant documents must be disclosed, and documents relied on by the
Parties that are submitted to the Tribunal prior to the start of the Hearing,
Representatives
Where a Party, Participant or Presenter is represented, all communication
to them from either the Tribunal or the other Parties shall be through their representative
Dismissal for non-compliance
Failure to comply with Rules, orders, undertakings or written requests from the Tribunal that cause persistent undue delay maybe result in dismissal of the proceedings Does NOT apply to proceedings under ORMCA and GA, or to Niagara Escarpment Plan amendments under NEPDA, unless the Niagara Escarpment Plan amendment is under the CHA
Motion for Dismissal: A party may bring a motion to dismiss
proceedings if:
The matter is outside the jurisdiction of the Tribunal The matter is frivolous, vexatious or is commenced in bad faith Statutory requirements have not been met Another party has caused undue delay or has not complied with the Rules,
Does NOT apply to: NEPDA, ORMCA or GA
Dismissal on Tribunal’s initiative
The matter is outside the jurisdiction of the Tribunal Statutory requirements have not been met Does NOT apply to proceedings under ORMCA and GA, or to Niagara Escarpment Plan amendments under NEPDA, unless the Niagara Escarpment Plan amendment is under the CHA
Motion for Dismissal of Appeals of Development
The appeal does not disclose a planning justification, is not in the public interest, is without merit, is frivolous or vexatious or is made
Notice of appeal does not specify reasons for appeal Person who appealed decision has not responded to a request by the Tribunal for further information within the time specified by the Tribunal The matter is outside the jurisdiction of the Tribunal
A Party can apply for a reconsideration of an Order or Decision of
the Tribunal. The Party must:
Serve and file a Notice of Motion within
Rights or the Consolidated Hearings Act
Factors Tribunal will consider:
decision
NOT applicable to:
1. Broad cost powers under specific statutes
Costs do not follow the event Are not limited to considerations that govern the award of costs in any Court
2. Under section 17.1 of SPPA Tribunal has limited authority to award costs in situations of improper conduct
applies to all proceedings before the Tribunal except proceedings under ORMCA and GA, and Niagara Escarpment Plan Amendments under NEPDA When will tribunal make order for costs?
– The conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith
Only Parties are liable to pay cost orders and are eligible to receive cost awards.